The Enterprise of Law: Justice without the State

Leef, George, Freeman

The Enterprise of Law: Justice Without the State by Bruce Benson Independent Institute · 2011 · 416 pages · $19.50

Nearly everyone agrees that a few core government functions - foremost among them the provision of law and justice - can't be performed in a free market. A handful of rogue thinkers, however, questions this conventional wisdom.

Foremost among them is Florida State University economics professor Bruce Benson, who has been studying the issue for decades. His The Enterprise of Law, first published in 1990, has been republished and updated, with the intervening years only making it more essential.

"[P]eople's disgust with many public legal institutions is greater today than it was in 1990," Benson reminds us. The government produces many bad laws and does a poor job of enforcing the good ones. So why assume that law and justice - broadly covering personal and property protection, dispute resolution, trials, and punishment - can only be provided by the State? In fact, Benson's research shows, the government's system of law and justice is excessively costly, ineffective, and often quite unjust.

Benson begins with a history of the development of law and law enforcement that will surprise most readers.

"Our modern reliance on government to make law and establish order is not the historical norm," Benson writes. "Public police forces were not imposed on the people until the middle of the nineteenth century in the United States and Great Britain, for instance, and then only in the face of considerable citizen resistance."

Private parties used to enforce mostly customary law that had arisen in the community over time and proved to be valuable - not laws decreed by the monarch. Benson points to the Law Merchant, which was the set of rules that emerged over time to regulate dealings between traders. Often, those traders were in different countries and could not look to either commercial statutes (because they didn't exist) or to government courts (because judges could not be trusted to understand the dispute and adjudicate it fairly). So merchants established, in spontaneous-order fashion, their own system, which functioned well for centuries.

Why, then, did the State come to dominate in law and justice? It was for the same reason that governments usually take over anything: a) they like control, and b) special interests stood to benefit from the takeover. Customary law and justice mechanisms did not fail; these were squelched by rulers intent on maximizing their power and wealth. Following the Norman Conquest, traditional Anglo-Saxon law based on restitution to victims was replaced by courts run by the Crown. Why? Primarily because the Crown collected fines that would go into the government monopoly's coffers. …

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